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Reforming the Israeli High Court of Justice: Proposed versus Desirable 改革以色列高等法院:建议与可取
IF 0.7 Q2 Social Sciences Pub Date : 2023-12-05 DOI: 10.1017/s0021223723000237
Joshua Segev
Constitutional courts are expected to operate under certain conditions (independence, transparency, democratic pedigree) and to resolve controversies in accordance with legal rules, principles and procedures. When these expectations are repeatedly frustrated, the legitimacy of the court is damaged and it is perceived as a partisan institution. This article discusses four structural problems in the operation of the Israeli High Court of Justice, which have contributed significantly to the Court's current legitimacy crisis: fact-finding, panel composition, standing, and judicial selection. The article examines the governmental reform plan with regard to these structural problems and proposes practical solutions for each of the problems.
预计宪法法院将在某些条件下(独立、透明、民主)运作,并根据法律规则、原则和程序解决争议。当这些期望一再受挫时,法院的合法性就会受到损害,并被视为一个党派机构。本文讨论了以色列高等法院运作中的四个结构性问题,这些问题对法院目前的合法性危机起了重要作用:事实调查、小组组成、地位和司法选择。本文考察了政府针对这些结构性问题的改革方案,并针对每个问题提出了切实可行的解决方案。
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引用次数: 0
The Two Revolutions of Israel's National Identity 以色列民族认同的两次革命
IF 0.7 Q2 Social Sciences Pub Date : 2023-12-04 DOI: 10.1017/s0021223723000225
Barak Medina, Ofra Bloch
The judicial overhaul, designed to weaken the judiciary and unleash governmental power from its structural checks, should be understood, we argue, as part of a deeper transformation of Israel's constitutional identity. At its core, this transformation is not about ‘empowering the people’ but rather about questioning Israel's commitment to the fundamental principle of equal citizenship, mainly regarding the permissibility of preferring the interests of Jews over those of non-Jews. Understanding the judicial overhaul as part of this larger transformation of the state's identity, towards more Jewish and less democratic, carries normative implications regarding its legitimacy. The judicial overhaul is often presented by the Israeli government as an attempt to undo the 1992 so-called ‘constitutional revolution’, questioning its legitimacy and asserting that a counter-revolution would be permissible, aligning with the current will of the people. An examination of Israel's constitutional history refutes this argument. We show that while the 1992 revolution enjoyed both normative and, at least, partial social legitimacy, current attempts do not.
我们认为,司法改革旨在削弱司法,并将政府权力从其结构检查中解放出来,应该被理解为以色列宪法认同更深层次转变的一部分。这种转变的核心不是“赋予人民权力”,而是质疑以色列对平等公民权基本原则的承诺,主要是关于是否允许将犹太人的利益置于非犹太人的利益之上。将司法改革理解为国家身份更大转变的一部分,即向更犹太化和更不民主的方向转变,对其合法性具有规范意义。司法改革经常被以色列政府描述为试图撤销1992年所谓的“宪法革命”,质疑其合法性,并声称反革命是允许的,与当前人民的意愿保持一致。对以色列宪法历史的考察驳斥了这一观点。我们表明,尽管1992年的革命同时享有规范和至少部分的社会合法性,但当前的尝试却没有。
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引用次数: 0
Israel's Constitutional Moment 以色列的宪法时刻
IF 0.7 Q2 Social Sciences Pub Date : 2023-12-04 DOI: 10.1017/s0021223723000249
Yoav Dotan
As the result of the initiation of the ‘judicial reform’ in January 2023, and the huge wave of public protest, Israel is currently undergoing a political turmoil which may develop into a fully fledged constitutional crisis. In this article I provide an account of the roots and causes of the present crisis from a public law theory perspective. In particular, I discuss the relationship between constitutional and administrative law in Israeli law. I argue that the core of Israel's constitutional structure has always been the institutions of administrative law as created and developed during the ‘administrative revolution’ of the 1980s. In contrast, Israel's constitutional law has always been a peripheral in the core structure of judicial review over the political branches. Contrary to common wisdom, I argue that the ‘constitutional revolution’ of the mid-1990s has not changed this core structure, but rather provided an external belt of normative barricades for this core structure. Accordingly, and despite the pretentious constitutional discourse developed in the 1990s by the Court, Israel was and still is a monistic democracy with no true constitutional layer of norms that enjoys higher status vis-à-vis regular legislation.
由于2023年1月开始的“司法改革”,以及大规模的公众抗议浪潮,以色列目前正经历一场政治动荡,可能发展成一场全面的宪法危机。本文从公法理论的角度分析了当前危机的根源和原因。我特别讨论了以色列法律中宪法和行政法的关系。我认为,以色列宪法结构的核心一直是在20世纪80年代“行政革命”期间创建和发展的行政法制度。相比之下,以色列的宪法法律在司法审查对政治部门的核心结构中一直处于边缘地位。与常识相反,我认为20世纪90年代中期的“宪法革命”并没有改变这一核心结构,而是为这一核心结构提供了一个外部的规范障碍带。因此,尽管法院在1990年代发展了自命不凡的宪法话语,但以色列过去是,现在仍然是一个一元论的民主国家,没有真正的宪法规范层,在-à-vis常规立法中享有更高的地位。
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引用次数: 0
Political Polarisation and the Constitutional Crisis in Israel 以色列的政治两极分化和宪法危机
IF 0.7 Q2 Social Sciences Pub Date : 2023-11-24 DOI: 10.1017/s0021223723000213
Iddo Porat
The article aims to further the understanding of the current constitutional crisis in Israel through the lens of political polarisation. Israel, like other countries around the world, is experiencing a substantial increase in political polarisation. Recent data shows that since 2009 affective polarisation (the extent to which individuals have negative feelings towards members of the opposing party or group and positive feelings towards their own party or group) has risen by 180 per cent. The article discusses the various phenomena associated with an increase in polarisation and the problems it raises, traces the reasons for the increase in polarisation in Israel, and argues that polarisation has played an important role in creating the conflict between the current government and the Supreme Court, and in making it so intense and intractable.
本文旨在透过政治两极分化的镜头,进一步了解以色列目前的宪法危机。和世界上其他国家一样,以色列正经历着政治两极分化的大幅加剧。最近的数据显示,自2009年以来,情感两极分化(个人对对方政党或团体成员的负面情绪和对自己政党或团体的积极情绪的程度)已经上升了180%。文章讨论了与两极分化增加相关的各种现象及其引发的问题,追溯了以色列两极分化增加的原因。他认为,两极分化在造成现任政府和最高法院之间的冲突,并使其如此激烈和棘手方面发挥了重要作用。
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引用次数: 0
Populist Constitutionalism and the Judicial Overhaul in Israel 民粹宪政与以色列的司法改革
IF 0.7 Q2 Social Sciences Pub Date : 2023-11-17 DOI: 10.1017/s0021223723000201
Yaniv Roznai, Amichai Cohen
In the last year Israel has been going through its most severe constitutional crisis in its history. The newly elected right-wing government has initiated a judicial overhaul that would limit the authority of the judiciary and grant the executive almost absolute powers. In response, the country has witnessed unprecedented civil protestations and opposition from nearly all segments of civil society, academia and economic sectors. In this article we argue that the judicial overhaul must be analysed as a populist constitutional project. We also explain that compared with other systems, Israeli democracy is especially vulnerable to populism, because of its unique institutional design factors coupled with social factors. Only with understanding these factors can one grasp the risks that the judicial overhaul poses to Israeli democracy.
去年,以色列经历了其历史上最严重的宪法危机。新当选的右翼政府已经启动了一项司法改革,该改革将限制司法部门的权威,并赋予行政部门几乎绝对的权力。作为回应,该国目睹了来自民间社会、学术界和经济部门几乎所有部门的前所未有的民间抗议和反对。在本文中,我们认为司法改革必须作为一个民粹主义的宪法项目来分析。我们还解释说,与其他制度相比,以色列的民主制度特别容易受到民粹主义的影响,因为其独特的制度设计因素与社会因素相结合。只有理解了这些因素,人们才能把握司法改革对以色列民主构成的风险。
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引用次数: 1
The Constitutional Overhaul and the West Bank: Is Israel's Constitutional Moment Occupied? 宪法改革与西岸:以色列的宪法时刻被占领了吗?
IF 0.7 Q2 Social Sciences Pub Date : 2023-11-15 DOI: 10.1017/s0021223723000195
Tamar Hostovsky Brandes
The protests against the Israeli government's proposed constitutional changes, which started in January 2023, have escalated into overall social upheaval. Protestors, politicians and academics have claimed that the existing ‘social contract’ has been violated, that Israel needs a ‘new contract’, and that such ‘new contract’ should be enacted through a constitution. This article argues that while the calls for the enactment of a constitution are understandable, Israel's current form of control of the West Bank and its commitment to the settlement project hinders the political feasibility of the enactment of a constitution. Those calling for a constitution for Israel perceive it as a solution to the indeterminacy and ambiguity that plague the Israeli constitutional framework. However, Israel's current form of control of the West Bank depends on ambiguity, on the existence of legal grey areas, and on fragmentation of the normative framework. The resolution of these is thus inconsistent with the maintenance of this form of control.
从2023年1月开始的反对以色列政府拟议的宪法改革的抗议活动,已经升级为全面的社会动荡。抗议者、政治家和学者声称,现有的“社会契约”已经被违反,以色列需要一份“新契约”,而这种“新契约”应该通过宪法颁布。本文认为,虽然要求制定宪法是可以理解的,但以色列目前对西岸的控制形式及其对定居点项目的承诺阻碍了制定宪法的政治可行性。那些呼吁为以色列制定宪法的人认为,这是解决困扰以色列宪法框架的不确定性和模糊性的办法。然而,以色列目前控制西岸的形式取决于模棱两可,法律灰色地带的存在,以及规范框架的分裂。因此,解决这些问题与维持这种形式的控制是不一致的。
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引用次数: 0
Judicial Reform or Abusive Constitutionalism in Israel 以色列的司法改革或滥用宪政
Q2 Social Sciences Pub Date : 2023-10-26 DOI: 10.1017/s0021223723000171
Yaniv Roznai, Rosalind Dixon, David E. Landau
Abstract How should the constitutional reform in Israel be assessed in comparative terms? Comparative constitutional understandings point to the centrality of three key sets of norms as part of the ‘democratic minimum core’: (i) commitments to free and fair, regular multi-party elections; (ii) political rights and freedoms; and (iii) a system of institutional checks and balances necessary to maintain (i) and (ii). Any change in judicial power and independence must be assessed against the benchmark of the democratic minimum core, and by reference to its cumulative practical effect on a system of institutional checks and balances. We claim that recent changes in Israel may already threaten these institutional checks, and have the potential to do more damage in the future, if given broad effect and if combined with further changes in the power and independence of the Supreme Court. On this basis, we suggest, the relevant changes should be viewed as either ‘abusive’ or ‘proto-abusive’ in nature. By threatening to undermine both the power and independence of the Supreme Court of Israel, they directly threaten the health of the constitutional checks and balances system and, hence, the ‘democratic minimum core’ in Israel.
以色列的宪法改革应该如何比较评价?对宪法的比较理解指出,作为“民主最低核心”的一部分,三套关键规范的中心地位:(i)承诺自由、公平、定期的多党选举;政治权利和自由;(iii)维持(i)和(ii)所必需的制度制衡制度。司法权力和独立的任何变化都必须以民主最低核心为基准进行评估,并参考其对制度制衡制度的累积实际影响。我们声称,以色列最近的变化可能已经威胁到这些机构的检查,如果产生广泛的影响,并与最高法院的权力和独立性的进一步变化相结合,将来有可能造成更大的损害。在此基础上,我们建议,相关的变化应该被视为“虐待”或“原始虐待”的性质。通过威胁破坏以色列最高法院的权力和独立性,他们直接威胁到宪法制衡制度的健康,从而威胁到以色列的“最低民主核心”。
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引用次数: 1
The Attempt to Capture the Courts in Israel 企图占领以色列的法院
Q2 Social Sciences Pub Date : 2023-10-12 DOI: 10.1017/s002122372300016x
Guy Lurie
A central element in the Israeli government's agenda to overhaul the judiciary, unveiled in January 2023, is its proposal to give it and its parliamentary coalition control over the selection and promotion of judges. This article shows that this proposal is an attempt to capture the courts. To illustrate this, the article looks at the government's proposal through three different perspectives: first, the perspective of the rationale of the current system of judicial selection, against the background of court governance in Israel and its constitutional system; second, the perspective of changes in Israel's judicial selection system over the past two decades; third, the comparative perspective of trends in judicial selection in other democracies.
2023年1月,以色列政府公布了改革司法机构的议程,其中一项核心内容是提议让政府及其议会联盟控制法官的遴选和晋升。本文表明,这一提议是企图俘获法院。为了说明这一点,本文从三个不同的角度来看待政府的提议:第一,在以色列法院治理及其宪法制度的背景下,从现行司法选拔制度的基本原理的角度;第二,过去二十年来以色列司法选拔制度的变化;第三,其他民主国家司法选拔趋势的比较视角。
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引用次数: 1
Releasing the Government from Acting Reasonably; or, the Government Says Goodbye to Reasonableness 使政府免于采取合理行动;或者说,政府告别了理性
Q2 Social Sciences Pub Date : 2023-10-06 DOI: 10.1017/s0021223723000146
Mordechai Kremnitzer
Abstract The Knesset has recently amended Basic Law: The Judiciary to eliminate the ability of the courts to issue an injunction against the government or any of its ministers based on the reasonableness of their decisions. This article examines this amendment from various angles. The first section posits the amendment as part of a larger plan of the coalition to eliminate judicial review and provide the government with unlimited power. The second section emphasises that the amendment was legislated by the Knesset for itself, raising concern over a conflict of interest. This is followed by a brief explanation of the reasonableness standard in Israeli law, and an assessment of the duty to act reasonably, which stems from the democratic principle of the rule of law. The next two sections assess the many risks that the amendment creates, such as the types of decision that could be made without adhering to a standard of reasonableness, and the trimming of the power of the Attorney General as a legal ‘gatekeeper’. Special emphasis is given to the dangers that the amendment holds for the quality and diversity of the civil service. Finally, the article discusses the multiple reasons why the government should not be immune from a reasonableness check and tackles the arguments against the use of the standard of reasonableness by the courts. This multifaceted analysis leads to the conclusion that the elimination of the reasonableness standard undermines basic features of democracy and fractures the social contract between the citizens and the government. Therefore, it should not be immune from judicial review.
以色列议会最近修改了《基本法:司法》,以消除法院根据其决定的合理性对政府或其任何部长发布禁令的能力。本文从多个角度考察了这一修正。第一部分将修正案作为联合政府更大计划的一部分,该计划旨在消除司法审查并赋予政府无限权力。第二部分强调,修正案是以色列议会为自己制定的,这引起了对利益冲突的关注。接着是对以色列法律中的合理性标准的简要解释,以及对源于法治民主原则的合理行事义务的评估。接下来的两节评估了修正案所带来的诸多风险,比如在不遵守合理标准的情况下可能做出的决定类型,以及削减司法部长作为法律“看门人”的权力。特别强调了该修正案对公务员制度的质量和多样性所构成的危险。最后,本文讨论了政府不应免于合理性审查的多重原因,并对反对法院使用合理性标准的争论进行了处理。这种多方面的分析可以得出结论:合理性标准的取消破坏了民主的基本特征,破坏了公民与政府之间的社会契约。因此,它不应免于司法审查。
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引用次数: 2
The Long Hand of Anti-Corruption: Israeli Judicial Reform in Comparative Perspective 反腐之手:比较视角下的以色列司法改革
Q2 Social Sciences Pub Date : 2023-10-06 DOI: 10.1017/s0021223723000158
Tom Ginsburg
Abstract There are many ways in which to examine the current Israeli constitutional crisis. This article uses the lens of anti-corruption, a global movement which has changed politics in many countries. The long empowerment of the legal system in Israel arguably has its origins in policing corruption, which may be a particularly powerful motivator for the current governing coalition's efforts to assert more control over the Supreme Court. The dynamics of anti-corruption in Israel are somewhat distinct from those of other countries in ways that may bode well for the Court in its confrontation with the government.
有许多方法可以审视当前以色列的宪法危机。这篇文章使用了反腐败的镜头,这是一场改变了许多国家政治的全球运动。以色列法律体系的长期授权可以说源于监管腐败,这可能是当前执政联盟努力加强对最高法院控制的一个特别强大的动机。以色列的反腐败动态与其他国家有所不同,这可能是法院与政府对抗的好兆头。
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引用次数: 0
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ISRAEL LAW REVIEW
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